September 20, 2010

Armed Forces (Special Powers) Act 1958 or AFDPA is in the news for wrong reasons. It has become a serious issue and even the union cabinet is divided on whether the Act should be diluted in the context of recent disturbances and killings by security forces in Jammu & Kashmir.

The government, armed forces and some political parties and a section of citizens feel that once army has been drawn in disturbed areas, there is no escape from giving the forces the necessary legal protection to deal with the extraordinary situation. On the other hand, civil society is generally against such a ‘draconian law’ that gives excessive powers to the armed forces, which are misused and abused.

In this post, I am giving the text of the AFSPA. The Act was first enacted in 1958 for Assam and Manipur. It was extended in stages to other north-eastern states and in 1990 to Jammu & Kashmir. The wordings of the act as it applies to the north east and J&K is the same. For the sake of clarity, I have removed certain technical references to amendments etc.

Armed Forces (Special Powers) Act, 1958

An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.

BE it enacted by Parliament in the Ninth Year of the Republic of India as follows:-

2. Definitions

In this Act, unless the context otherwise requires,-
(a) "armed forces" means the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating.

(b) "disturbed area" means an area which is for the time being declared-by notification under 3. to be a disturbed area;

(c) all other words and expressions used herein but not defined, and defined in the Air Force Act, 1950-, or the Army Act, 1950-, shall have the meanings respectively assigned to them in those Acts.

3. Power to declare areas to be disturbed areas.

If, in relation to any State or Union Territory lo which this Act extends, the Governor of that State or the Administrator of that Union Territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area].

4. Special powers of the armed forces.

Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to, be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

5. Arrested persons to be made over to the police.

Any person arrested and taken into custody under this Act shall be made over to the, officer in charge of the nearest police station with the least possible delay, together with a report. of the circumstances occasioning the arrest.

6. Protection to persons acting under Act.

No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.